Lorzing v. Eisenberg — 55 N.Y. St. Rep. 510

Majority

p. 510

Robert Lorzing, Resp’t, v. William Eisenberg, App’lt.

(City Court of New York, General Term,,

Filed October 20, 1893.)

Headnote

Default—Laches.

A judgment By default was taken in April, a corrected judgment entered in May and a motion to open the default made on June 10. Ileld, that the defendant was not guilty of laches in making the motion, and that the application being made in good faith and as the defenses, if proved, would prevent a recovery by plaintiff, the motion should be granted on terms.

p. 511

Appeal from order denying motion to open a default.

William H. Regan, for resp’t; Fromme Brothers, for app’lt.

This is an appeal from an order denying a motion to open a default, and the question is whether from all the facts presented the application was in good faith, and whether the defendant presented a meritorious defense, and whether any injustice may be done by such denial.

It appears that the judgment was- taken in April, 1893, but that, the judgment being imperfect a correct judgment was entered in May, 189Í

On June 10, 1893, a motion was made to open the default, and the ground of which appears in the affidavits.

The motion was denied on the ground of laches.

This was not, in our judgment, an unreasonable delay in seeking to open this default and set aside the judgment if the application was in good faith and there was merit in the defense. See Code Civ. Pro., § 724.

Earl, J., in Ladd v. Stevenson, 112 N. Y., 325 ; 20 St. Rep., 746 , says : “ But in the exercise of its control over its judgments it may open them upon the application of anyone for sufficient reason, in the furtherance of justice. Its power to do so does not depend upon any statute, but it is inherent, and it would be quite unfortunate if it did not possess it to the fullest extent.”

The application was certainly made in good faith, since the actual engagement of counsel in an important litigation at the-time was not denied.

Besides, if the defense and counterclaim set forth in the answer can be proved, it seems to me the plaintiff is not entitled to recover, and, therefore, should not have a judgment against the defendant until after a fair and impartial trial.

We think under these circumstances a great injustice would be done, and while it is the,desire to sustain the discretionary powers of the court, yet where there is an.apparent good faith the court will not act arbitrarily but will give the fullest and fairest opportunity to dispose of the issues involved.

We think, therefore, that the default should have been opened upon payment of forty dollars costs and the disbursements in entering the judgment and ten dollars costs of the motion to open such default.

The order is therefore reversed without costs or disbursements, and the default opened and the cause restored to calendar for trial part IV, for Monday, Kov. 6,1893, on payment by defendant of the forty dollars costs and disbursements and the ten dollars costs above set forth, the defendant also stipulating to try cause on that day, and that otherwise judgment absolute shall be entered against him; such stipulation to be filed by the appellant with the clerk of this court within two days of the entry of this order,

Fitzsimons, J., concurs.